Senate Judiciary Committee

Subcommittee on the Constitution, Civil Rights and Human Rights

The State of Civil and Human Rights in the United States
December 9, 2014
Submitted by
The Brennan Center for Justice at NYU School of Law
For further information contact
Nicole Austin-Hillery, Director and Counsel, Washington Office
at nicole.austin-hillery@nyu.edu

Chairman Durbin, Ranking Member Grassley, and distinguished members of the Senate
Judiciary Committee, Subcommittee on the Constitution, Civil Rights and Human Rights, thank
you for the opportunity to address the state of civil and human rights in the United States.
The Brennan Center for Justice is a nonpartisan law and policy institute that seeks to improve the
national systems of democracy and justice. The Brennan Center for Justice was created in 1995
by the law clerks and family of the late Supreme Court Justice William J. Brennan, Jr. as a living
memorial to his belief that the Constitution is the genius of American law and politics, and the
test of our institutions is how they treat the most vulnerable among us. Affiliated with New York
University School of Law, the Brennan Center has emerged as a national leader on issues of
democracy and justice.1
The Brennan Center is committed to advancing improvements in the areas of civil and human
rights through our work in the areas of democracy, justice and liberty and national security.
Specifically, our focus on voting rights, criminal justice reform and ending mass incarceration as
well as our efforts to ensure the protection of civil liberties by promoting an open and transparent
government that respects the rule of law and privacy, are hallmarks of our civil and human rights
work. We recognize that our nation is at a particularly crucial moment in its history regarding
how we move forward in our effort to protect the rights of our citizens, from criminal justice to
voting rights. We appreciate the opportunity to offer this testimony.

This testimony does not represent the opinions of NYU School of Law.

I.

REFORMING THE NATION'S VOTING SYSTEM THROUGH

MODERNIZATION AND STRENGTHENING VOTING PROTECTIONS
TO ENSURE A STRONGER DEMOCRACY IS A CRUCIAL STEP IN
ADVANCING AND PROTECTING CIVIL RIGHTS

Ensuring that every eligible American has the right and opportunity to engage in our political
process is a fundamental civil rights issue. Since the 2010 election, 22 states have passed new
restrictions on the right to vote. The nation needs Congresss leadership to help improve the
business of running elections.
Congress should: 1) modernize voter registration; 2) adopt minimum standards for polling place
resources; 3) expand early in-person voting; 4) revitalize the Voting Rights Act; and 5) restore
voting rights to citizens living and working in the community with criminal convictions in their
past. Together, these reforms will make our election system more free, fair, and accessible to all
eligible citizens.
A.

Modernize Voter Registration

Voter registration is the single biggest election administration problem in the United States. One
in eight registrations nationwide contains serious errors, and one in four eligible Americans are
not registered to vote at all.2 The continued use of inefficient and error-prone paper-based
registrations is the primary cause of this problem.3 Recent data suggest that this problem has not
abated. In the 2012 election, 2.8 percent of in-person voters experienced registration problems,
up from 2.0 percent in 2008.4
Congress should pass legislation that puts the onus on the government to register eligible
Americans and modernizes how we register voters. Specifically, Congress should pass
legislation that: 1) digitally transfers to election officials the registration information of citizens
who have chosen to register while conducting business with a government office, 2) provides for
online registration, 3) make a voters registration move with that voter within a state, and 4)
provides for the ability to correct and update registration up to and on Election Day. Congress
can look to the Voter Empowerment Act, sponsored by Rep. Lewis and Sen. Gillibrand, and the
Voter Registration Modernization Act, sponsored by Sen. Gillibrand, for approaches to these
reforms.
Modernizing registration produces several tangible benefits. It would simplify the registration
process and bring 50 to 65 million eligible Americans into the electoral process. At the same
time, it would ease burdens on election officials and make our voting system less expensive. It
would also reduce fraud because voter records would be more accurate and up to date.
2

Pew Center on the States, Inaccurate, Costly, and Inefficient 2-3 (2012), available at
http://www.pewtrusts.org/~/media/Imported-andLegacy/uploadedfiles/pcs_assets/2012/PewUpgradingVoterRegistrationpdf.pdf.
3
See Testimony of the Brennan Center for Justice at NYU School of Law Before the Presidential Commission on
Election Administration (Sept. 4, 2013), available at
http://www.brennancenter.org/sites/default/files/analysis/PCEA_Testimony_090413.pdf.
4
Charles Stewart III, 2012 Survey of the Performance of American Elections, Final Report 70 (2013), available at
http://dvn.iq.harvard.edu/dvn/dv/measuringelections.

B.

Adopt Minimum Standards for Managing Polling Place Resources

There is a widespread consensus that inadequate allocation of resources whether of voting

machines, poll workers, or ballots can lead to long lines and ultimately prevent thousands from
voting.5 Long lines reduce voter turnout and satisfaction; one analysis estimated that in Florida
alone, more than 200,000 voters may have been discouraged from participating in the 2012
election because of long lines.6 A recent Brennan Center study, Election Day Long Lines:
Resource Allocation, examined precinct-level data from Florida, Maryland, and South Carolina
and found that voters in precincts with more minorities tended to experience longer waits and
that such precincts tended to have fewer machines. Overall, we found the precincts with the
longest lines had fewer machines, poll workers, or both.
Congress should pass legislation to ensure that polling stations are sufficiently resourced. One
starting point is the LINE Act, sponsored by Sen. Boxer, which would require states to provide a
minimum number of poll workers and voting machines at each Election Day and early voting
site.7 The Presidential Commission on Election Administration (PCEA) urged states to improve
the management of polling place resources by examining such resources and setting maximum
acceptable wait times concluding that voters should generally not have to wait in excess of half
an hour to vote under normal circumstances.8
Congress can also take an immediate step to address both polling place resources and what the
PCEA called an impending crisis in voting technology9 by confirming the pending nominees
to the Election Assistance Commission, which has been without commissioners since 2011. Past
elections have showed that persistent and widespread equipment failures can have a damaging
effect on public perception of election integrity, especially when exacerbated by close and highly
politicized contests. These problems highlight the need for an effective agency devoted to
improving election administration.

In 2012, examples of inadequate resources leading to long lines include Richland County South Carolina, (Jody
Barr and Jennifer Emert, Richland County: We Will Conduct a Thorough Investigation, WISTV.COM, Nov. 7,
2012, available at http://www.wistv.com/story/20035057/what-happened-with-the-polls-in-richland-county), and
Oahu, Hawaii (Karleanne Matthews, The Election. What Happened?, HONOLULU WEEKLY, Nov. 28, 2012,
available at http://honoluluweekly.com/feature/2012/11/the-election-what-happened/).
6
Scott Powers and David Damron, Analysis: 201,000 in Florida Didnt Vote Because of Long Lines, Orlando
Sentinel, Jan. 23, 2013, available at http://articles.orlandosentinel.com/2013-01-29/business/os-voter-linesstatewide-20130118_1_long-lines-sentinel-analysis-state-ken-detzner. Professor Theodore Allen found that long
lines in Florida caused an estimated 49,000 people in central Florida not to vote. He previously found that long lines
in Franklin County, Ohio discouraged approximately 20,000 people from voting. Voters who experience longer lines
have less positive evaluations of their voting experience. Scott Powers and David Damron, Researcher: Long Lines
at Polls Caused 49,000 not to vote, Dec. 29, 2012, available at http://articles.orlandosentinel.com/2012-1229/news/os-discouraged-voters-20121229_1_long-lines-higher-turnout-election-day (citing analysis of Theodore
Allen).
7
S. 58, 113th Cong. (2013).
8
Presidential Commission on Election Administration, The American Voting Experience: Report and
Recommendations of the Presidential Commission on Election Administration 14 (2014), available at
https://www.supportthevoter.gov/files/2014/01/Amer-Voting-Exper-final-draft-01-09-14-508.pdf (PCEA Report).
9
Id. at 62.

C.

Expand Early In-Person Voting

The antiquated notion that all ballots cast in-person must be voted on a single day, in an 8 or 12
hour period, fails to reflect the realities faced by Americans with complex lives. It also burdens
poll workers who must serve waves of voters. Congress should pass legislation to improve
election administration by establishing national standards for early in-person voting (EIPV). The
standards would include: establishing EIPV a full two weeks before Election Day, extending
early voting hours, and including the last weekend before Election Day. The Brennan Center
report Early Voting: What Works provides further detail on five key benefits to such reforms: 1)
reducing stress on the voting system on Election Day; 2) alleviating long lines on Election Day;
3) improving poll worker performance; 4) allowing early identification and correction of
registration errors and voting system glitches; and 5) providing greater access to voting and
increased voter satisfaction.
D.

Revitalize the Voting Rights Act

The Supreme Court in Shelby County v. Holder effectively eviscerated the core provision of the
Voting Rights Act (VRA), leaving millions of voters without the protection of the most effective
tool in American law to combat racial discrimination in voting. Existing laws are simply
insufficient to fill the void left by the Supreme Courts decision. In 2013 and 2014, at least 10 of
the 15 states that had been covered in whole or in part by Section 5 introduced new restrictive
legislation that would make it harder for minority voters to cast a ballot. Further, seven other
formerly covered states also passed restrictive legislation in 2011 and 2012, prior to the Shelby
County decision. Congress should pass the Voting Rights Amendment Act10 to restore these
protections. A robust VRA with a reinvigorated Section 5 at its core continues to be
necessary to secure the equal voting rights promised to all citizens by the Constitution.
E.

Restore Voting Rights to Citizens with Criminal Convictions

Over 4 million American citizens living and working in our communities are denied the right to
vote because they have a criminal conviction in their past. Congress should pass the Democracy
Restoration Act,11 introduced by Sen. Ben Cardin and Rep. John Conyers. Restoring voting
rights to people with criminal convictions would strengthen our democracy and advance civil
rights for millions of citizens. Further, it would aid law enforcement by aiding the re-entry
process, and facilitate election administration by relieving confusion among election officials and
the public about who is eligible to vote.
II.

REFORMING THE NATION'S CRIMINAL JUSTICE SYSTEM IS KEY

TO ADVANCING CIVIL AND HUMAN RIGHTS IN THE NEXT DECADE

In recent years, momentum has grown to address mass incarceration at the federal level. Two
key forces drive over incarceration in the United States: (1) the increased number of individuals
entering prison every year; and (2) the increased length of time each prisoner spends behind bars.
This reality is never more apparent in the federal context than in relation to federal drug crimes.
10
11

H.R. 3899, 113th Cong. (2014).

H.R. 4459/S. 2235, 113th Cong. (2014).

Not only have the number of prisoners prosecuted and processed into the system increased, but
the mandatory length of prison terms has increased for drug offenders in particular. The result is
an overpopulated, understaffed federal Bureau of Prisons (BOP) with little additional benefit to
public safety. Below we discuss two alternative measures that can and should be considered by
Congress to build on the momentum to address mass incarceration at the federal level through
systemic reforms.
A.

Reform Sentencing Laws to Reduce Severe Mandatory Minimum

Sentences

Current mandatory minimum penalties are a primary inefficiency in the federal justice system.
They lengthen sentences for not only drug offenders subject to the penalties, but for all drug
offenders in the federal system. This reality exists because the U.S. Sentencing Commission
chose to incorporate the harsh mandatory minimum drug penalties enacted by Congress during
the 1980s into the federal sentencing guidelines. Though the Sentencing Commission has taken
steps to alleviate the harsh effects of this decision including most recently reducing the
guideline range for most drug sentences these reforms cannot have the same impact as
Congressional action. Reducing mandatory minimums would reduce the uniform severity of the
federal system (longer sentences for all offenders) that contributes to its current overcrowding
problems. Long sentences for drug offenders contribute significantly to the federal prison
populations unsustainable growth.12 Every year, 15,000 offenders are convicted of drug crimes
that carry a mandatory minimum penalty.13 Legislative changes to these laws would have a
substantial impact on the overcrowding of federal prisons and create numerous cost-efficiencies.
Congress is currently considering a piece of legislation that would reduce mandatory minimum
penalties for drug offenders. The Smarter Sentencing Act (S. 1410), introduced by Senators Dick
Durbin (D-IL) and Mike Lee (R-UT), would reduce mandatory minimums for all drug offenders.
The Brennan Center supports this legislation as measure that will improve the rationality of the
federal justice system without posing unreasonable threats to public safety.
There are several advantages to reducing the severity of mandatory minimum sentences as a
means to address the pressures of mass incarceration. First, reducing the mandatory minimum
length through legislative reform will not result in automatically shortened sentences; rather, this
reform allows judges to make more individualized sentencing decisions narrowly tailored for the
specific offender. Second, such legislative reform does not eliminate harsh sentences for serious
offenders. Mandatory minimum penalties were created to apply to kingpins and high-level drug
dealers, but the reality of its application has been much broader. Only 7 percent of all drug
offenders have the enhancement characteristic Congress envisioned when it created these
penalties, and yet 62 percent of drug offenders receive mandatory minimum sentences.14
12

JULIE SAMUELS, NANCY LA VIGNE & SAMUEL TAXY, URBAN INSTITUTE, STEMMING THE TIDE: STRATEGIES TO
REDUCE THE GROWTH AND CUT THE COST OF THE FEDERAL PRISON SYSTEM 23 (2013), available at
http://www.urban.org/UploadedPDF/412932-stemming-the-tide.pdf [hereinafter URBAN INSTITUTE, STEMMING THE
TIDE] (The amount of time served by drug offenders a function of [mandatory minimum] sentences and truth-insentencing requirements is the single greatest contributor to the growth in the prison population.) .
13
Id. at 24.
14
See U.S. SENTENCING COMMN, 2013 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS tbl. 40, 43 (2013)
(calculating role adjustments for drug offenders and total number of drug offenders receiving mandatory
minimums).

Reducing mandatory minimum penalties for drug offenders will reduce the average sentence of
drug offenses generally, thus creating a more proportionate analysis for all federal sentencing.
Reducing mandatory minimum penalties for drug crimes will likely benefit the public greatly.
The U.S. Sentencing Commission collected data on the recidivism rate of offenders who
benefited from the crack-minus-two amendment implemented in 2007 to alleviate the harsh
effects of previous crack versus powder cocaine mandatory minimum sentences. The results of
the Commissions study indicate that those offenders who received the reduced sentences under
crack-minus-two had a modestly lower rate of recidivism (30.4%) as compared to other drug
offenders (32.6%). This is consistent with data suggesting that longer sentences do not
effectively deter individuals, and may in fact have a criminogenic effect on particularly lower
level offenders.15
Moreover, reducing mandatory minimum penalties will provide billions of dollars in fiscal
savings. The bill, if passed, reduces certain 20-year, 10-year, and 5-year mandatory minimum
drug sentences to 10-year, 5-year, and 2-year sentences. In 2013 alone, more than 14,000
offenders were sentenced to a five or ten year mandatory minimum sentence.16 If these offenders
serve their full sentences, the federal government will spend $3.3 billion on these individuals. If
they had been sentenced under the proposed SSA structure, the government would spend $1.5
billion to incarcerate these offenders.17 It is clear that this amendment will provide fiscal savings
that can produce improved efficiencies across BOP and DOJ.
B.

Adopt Success-Oriented Funding

On a more systemic level, Congress should implement Success-Oriented Funding (SOF) for
the BOP budget as another practical and efficient method to reduce the federal prison population.
Set forth in a recent Brennan Center report, SOF uses the power of the purse to steer the criminal
justice system toward the twin goals of reducing crime and reducing mass incarceration goals
research shows are not in conflict.18 The concept is simple: fund what works. Grounded in
economic principles and built on discrete models in other policy areas, Success-Oriented
Funding ties government dollars as closely as possible to whether agencies or programs meet
clear, specific, measureable goals. These goals would drive toward what policymakers and
researchers increasingly see as a new, modern, and more effective justice system. The model
imports private sector business principles and applies it to public dollars to make government
work better. It draws on tried and tested principles of economics, finance, and management.

15

See, e.g., Cassia Spohn and David Holleran, The Effect of Imprisonment on Recidivism Rates of Felony Offenders:
A Focus on Drug Offenders, 40 CRIMINOLOGY 329 (2002).
16
U.S. SENTENCING COMMN, 2013 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS tbl. 43 (2013) (indicating
that 6,350 drug offenders received five-year mandatory minimum sentences and 7,862 drug offenders received tenyear mandatory minimum sentences in 2013).
17
Calculations assume $30,000 per prisoner, per year and multiples the number of prisoners by the cost by the
mandatory term of incarceration. Comparisons are made between the five- and ten-year sentences versus the fiveand two-year sentences, respectively.
18
See PEW CTR. ON THE STATES, ONE IN 31: THE LONG REACH OF AMERICAN CORRECTIONS 17-20 (2009), available
at (describing how more prison spending brings lower public safety returns); see also Spohn & Holleran, supra note
7 (discussing the criminogenic effect of incarcerating low level drug offenders).

Broad goals for funding include: reducing recidivism, reducing crime, reducing prison sentences,
and reducing incarceration. Agency-specific goals would vary depending on the agency or
program funded. For example, budgets for community corrections would focus on reducing
recidivism and budgets for police would focus on reducing violent crime. SOF ties grant dollars
to these goals.
The federal government aids states and cities by subsidizing their criminal justice costs through
grant funding. Federal criminal justice grants send at least $3.8 billion to states and localities
each year.19 These dollars flow to local police departments, prosecutors, courts, prisons, and
reentry programs.20 These grants are critical to states and cities, which have come to rely on
annual federal largesse. Additional programs send billions in dollars and equipment to law
enforcement for fighting terrorism and other purposes; the Department of Homeland Security
alone awarded nearly $1 billion in 2013.21i
Congress should lead a coordinated effort to reorient all federal criminal justice grants toward the
goals of reducing mass incarceration and better reducing crime. One way to reorient these grants
is to implement "Success-Oriented Funding to all federal criminal justice programs that fund
crime fighting and other criminal justice activities. Because these dollars travel across the
country, implementing Success-Oriented Funding into federal grants can shift practices and
outcomes across the country.
In June 2014, President Obama introduced his FY 2015 Budget proposal for the Department of
Justice, which requests $27.4 billion for the Justice Department, of which $173 million is set
aside for targeted investments for criminal justice reform efforts. The Presidents budget
provides a needed boost to the types of competitive, evidence-based grant programs that make
better use of taxpayer dollars. His budget also improves the Byrne JAG program, by calling for
an additional $45 million to be funded through competitive grants that are conditioned on
potential Byrne JAG program recipients making a good case for how they will use the money.
The budget also creates a $15 million incentive grant program, essentially bonus money for
which states and localities can compete.
The Brennan Center supports these efforts because they move budgeting and funding toward
Success-Oriented Funding by holding recipients of federal dollars accountable for their spending
choices by implementing direct links between funding and proven results. Members on both
sides of the aisle also support criminal justice funding reform. House Judiciary Committee
19

The authors calculated this total based on a thorough search for data available online for each grant program the
federal government offered in 2013 to support criminal justice activities. The authors found this data primarily on
websites hosted by federal agencies that offered 2013 grant opportunities. Where 2013 data was unavailable for an
identified criminal justice program, the authors instead compiled data on the most recently available year. The
authors excluded programs dedicated to national security purposes in order to determine the particular total amount
the federal government spends for criminal justice purposes. Based on its limitation to publicly available data, it is
possible this calculation does not include all data for all federal grants that support criminal justice activities.
However, it includes a robust compilation of available data. Data on file with the authors.
20
For example, DOJ alone offers federal financial assistance to a broad range of criminal justice actors, including
scholars, practitioners, experts, state and local governments and agencies, crime victims, and law enforcement
agencies. See Grants, DEPARTMENT OF JUSTICE, http://www.justice.gov/business/ (last visited July 25, 2014).
21
DEPT. OF HOMELAND SECURITY, FY 2013 HOMELAND SECURITY GRANT PROGRAM (HSGP) 1 (2013), available
at http://www.fema.gov/media-librarydata/8d0439562c89644a68954505a49cbc77/FY_2013_Homeland+Security+Grant+Program_Fact_Sheet_+Final.pdf

Chairman Robert W. Goodlatte (R-VA) stated grant programs are not always designed or
administered as efficiently as they should be which means that less money is actually sent to
help the boots on the ground. Congressman Robert Scott (D-VA) expressed a similar concern
about the need to ensure successful returns on our investments in grant dollars. Success-Oriented
Funding allows Congress to ensure the criminal justice system is producing results while not
increasing unintended social costs. Success-Oriented funding principals improve the use of
taxpayer money, promote accountability and reduce government waste.
III.

SECURING OUR NATIONAL SECURITY MUST BE BALANCED WITH

THE NEED TO PROTECT CIVIL AND HUMAN RIGHTS
A.

Profiling

Our country is founded on the principle that all Americans regardless of race, religion or
ethnicity will be treated equally by our government. Many of us, or our ancestors, came to
America fleeing religious persecution and discrimination and in search of a country that would
allow us to follow our consciences free from harassment. As our law enforcement agencies carry
out the enormous responsibility of keeping us safe, they must do so consistent with these values
and relying on the strength of our communities.
Selecting individuals for law enforcement scrutiny on the basis of race has long been recognized
as both wrong and ineffective. Nonetheless, racial profiling persists and, since 9/11, has been
joined by the equally invidious practice of religious profiling.
As a consequence, many law enforcement agencies have instituted polices that target individuals
for scrutiny because of their religion. In particular, evidence is mounting that law enforcement
agencies deliberately target American Muslims for surveillance without any basis to suspect
wrongdoing.
The NYPD, for example, has for years run a program that monitors American Muslim
communities living in the tri-state (New York, New Jersey, and Connecticut) area.22 This
surveillance appears to be based on religion, rather than any specific leads or other objective
reasons to suspect wrongdoing. It has also been ineffective, generating no leads or
prosecutions.23
Unfortunately, the NYPD is not alone in its efforts to map American Muslim communities. The
Federal Bureau of Investigation (FBI) has carried out similar programs.24 It has also assigned

22

Matt Apuzzo & Adam Goldman, With CIA Help, NYPD Moves Covertly in Muslim Areas, ASSOCIATED PRESS
(Aug. 23, 2011), available at http://www.ap.org/Content/AP-In-The-News/2011/With-CIA-help-NYPD-movescovertly-in-Muslim-areas.
23
Adam Goldman & Matt Apuzzo, NYPD: Muslim Spying Led to No Leads, Terror Cases, ASSOCIATED PRESS,
(Aug. 21, 2012), available at http://www.ap.org/Content/AP-In-The-News/2012/NYPD-Muslim-spying-led-to-noleads-terror-cases.
24
See e.g., Federal Bureau of Investigation, Electronic Communication: Detroit Domain Management, (July 6,
2009) available at http://www.aclu.org/files/fbimappingfoia/20111019/ACLURM011609.pdf (documenting the
FBIs attempt to open a Domain Assessment in Michigan based on the fact that Michigan has a large MiddleEastern and Muslim population).

informants to infiltrate mosques and report on congregants.25 And it has systematically kept tabs
on the lawful First Amendment activities of American Muslims.26
This type of institutionalized religious profiling draws upon the explicit connection some law
enforcement agencies, particularly the NYPD and the FBI, have drawn between religiosity and
terrorism. But such profiling is just as pernicious and ineffective as profiling on the basis of race
or ethnicity.27
The mass interviews and detention of Muslims after 9/11 failed to turn up a single known
connection to the 9/11 attacks; similarly, no terrorism or national security charges resulted from
the mass interviews of Muslim immigrants leading up to the 2004 election.28 There is no
evidence that the NYPDs widespread mosque infiltration has uncovered any existing terrorist
plots, and indeed, senior CIA officials have described a similar program of mosque infiltration
that the CIA undertook overseas as ineffective.29
What is clear, however, is that profiled groups come to resent and fear the police in their
communities. The same holds true for religious profiling, and there is ample evidence that the
above activities have triggered as one national Muslim organization testified before Congress
fear and suspicion within the Muslim community toward law enforcement.30
In short, religious profiling creates the same injustices and harms that are generated by racial and
ethnic profiling. It burdens American Muslims fundamental right to practice their religion
without unwarranted government scrutiny. It is ineffective in preventing criminal and terrorist
activity. It may be counterproductive because it breeds resentment among Muslim communities
and therefore discourages their cooperation with law enforcement. Finally, it perpetuates
negative stereotypes about Muslims and thus feeds into a poisonous dynamic of bias and
intolerance.

25

See Transcript of Record at 668, United States v. Cromitie, No. 09-558 (S.D.N.Y. Oct. 18, 2010); Second
Amended Complaint at 24-25, Monteilh v. FBI, No. 8:2010-cv-00102 (C.D. Cal. Sept. 2, 2010).
26
RECORDS MGMT. DIV., FED. BUREAU OF INVESTIGATION, FOI/PA NO. 1071083-001, RESPONSE TO FREEDOM OF
INFORMATION ACT REQUEST BY AMERICAN CIVIL LIBERTIES UNION FOR SURVEILLANCE RECORDS ACLU-25 (on file
with the Brennan Center).
27
See FAIZA PATEL, RETHINKING RADICALIZATION, (Brennan Center for Justice at NYU Law, 2011), available at
http://brennan.3cdn.net/f737600b433d98d25e_6pm6beukt.pdf.
28
Tom R. Tyler, Stephen J. Schulhofer & Aziz Z. Huq, Legitimacy and Deterrence Effects in Counter-Terrorism
Policing: A Study of Muslim Americans, 44 LAW & SOCY REV. 365, 396 (2010).
29
Seth Freed Wessler, A Closer Look at Ray Kellys Multi-Billion Dollar Army of Spies, COLORLINES, (Mar. 1,
2012), http://colorlines.com/archives/2012/03/ray_kelly_multi-billion_dollar_army_profling_spying_muslims.html.
30
See e.g. Racial Profiling and the Use of Suspect Classifications in Law Enforcement Policy: Hearing Before the
Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 62
(2010) (written testimony of Farhana Khera, President and Exec. Dir., Muslim Advocates); Radicalization,
Information Sharing and Community Outreach: Protecting the Homeland from Homegrown Terror: Hearing before
the Subcomm. on Intelligence, Info. Sharing and Terrorism Risk Assessment of the H. Comm. on Homeland Sec.,
110th Cong. 6 (2007) (statement for the record of Sireen Sawaf, Govt Relations Dir., S. Cal. Muslim Pub. Affairs
Council), available at http://hscdemocrats.house.gov/SiteDocuments/20070405120720-29895.pdf; Nicole J.
Henderson et al., U.S. Dept of Justice, Policing in Arab-American Communities After September 11 ii (2008),
available at https://www.ncjrs.gov/pdffiles1/nij/221706.pdf.

On December 8, 2014, the Department of Justice (DOJ) issued new Policy Guidance on the use
of profiling by federal law enforcement agencies.31 On its face, the new Guidance appears to
make some improvements to the previous rules, last revised in 2003. Most notably, it extends the
prohibition on racial and ethnic profiling to include gender, national origin, religion, sexual
orientation, or gender identity.32 The Guidance also purports to cover all enforcement activities
other than routine or spontaneous law enforcement activities. However, it creates new loopholes
within this category; as a result, the rules may actually offer less protection in some
circumstances than the previous version. Moreover, ambiguous language in the text and in
footnotes makes the guidance more likely to create confusion rather than to clarify it.

Agencies and Personnel Affected. The Guidance appears to cover all activities33
conducted by federal law enforcement agencies. But in a footnote the new Guidance
explicitly exempts Federal non-law enforcement personnel from coverage. Such
exempt personnel arguably include FBI intelligence analysts, as well as other DOJ
employees, and large swaths of personnel in other federal agencies, such as the
Department of Homeland Security, the Department of Defense, and the Department of
the Treasury.
Border Activities. Whereas the previous rules did not cover law enforcement activities at
the border, the new Guidance retains that loophole and expands it further. The Guidance
does not apply to interdiction activities in the vicinity of the border, or to protective,
inspection, or screening activities.34 Interdiction is a broad term that could refer to drug
enforcement, immigration enforcement, customs enforcement, and other criminal
activities within 100 miles of the border.
Treatment of Non-Routine Enforcement Activities. The previous rules distinguished
between routine or spontaneous law enforcement activities and specific
investigations, allowing officials to consider race and ethnicity in the latter context if
persons of a particular race or ethnicity were reliably linked to an identified criminal
incident, scheme, or investigation. The new Guidance adds a threat to national or
homeland security, a violation of Federal immigration law, or an authorized intelligence
activity to the list. The last category, in particular, creates a circularity in which
intelligence activities may take race and other characteristics into account so long as the
activities are authorized.
National Security Exemption. While the previous rules exempted national security
activities, the new Guidance removes that exemption by name. But at the same time, the
new loophole for considering race and other characteristics if linked to a threat to
national or homeland security or an authorized intelligence activity35 creates
ambiguity at a minimum, and could become its own de facto exemption for national
security activities. Indeed, the examples provided in the Guidance make clear that
profiling will be broadly tolerated in national security and intelligence investigations:
they endorse the consideration of prohibited characteristics in conducting source

31

U.S. DEPT. OF JUSTICE, GUIDANCE FOR FEDERAL LAW ENFORCEMENT AGENCIES REGARDING THE USE OF RACE,
ETHNICITY, GENDER, NATIONAL ORIGIN, RELIGION, SEXUAL ORIENTATION, OR GENDER IDENTITY (Dec. 2014),
available at http://www.justice.gov/sites/default/files/ag/pages/attachments/2014/12/08/use-of-race-policy.pdf
32
Id. at 2.
33
Id. at 2.
34
Id. at 2, n. 2.
35
Id. at 4.

10

recruitment36 relevant to an authorized intelligence activity, as well as the mapping of

specific ethnic communities if it is undertaken pursuant to an authorized intelligence or
investigative purpose.37
Application to State/Local Law Enforcement. The previous rules regulated only
federal law enforcement agencies, and thus did not cover the state and local police
departments at all. The new Guidance applies to state and local police participating in
federal law enforcement task forces.38 But to the extent that the Guidance is an
improvement over past policy when it comes to routine or spontaneous law
enforcement activities, it still fails to leverage all federal power to regulate state and local
law enforcement activities.
Enforcement. The 2003 rules provided no enforcement mechanism whatsoever. The new
Guidance will treat allegations of unlawful profiling just like other allegations of
misconduct.39 But given the ambiguity of the Guidance and remaining loopholes, greater
oversight and transparency of federal law enforcement training will be required.

As an unjust and ineffective technique, there should be no loopholes to allow the use of racial,
ethnic, gender, national origin, religious, sexual orientation or gender identity profiling in
national security cases, in intelligence gathering activities, or at the border. It makes no sense to
prohibit profiling in routine law enforcement scenarios, but then allow it to continue when the
stakes are even higher. By the same token, strong anti-profiling rules should also apply to state
and local law enforcement. There is simply no good argument for not extending such protections.
Congress need not commandeer the states to achieve this goal; it could easily require compliance
as a condition of continued federal funding for law enforcement.
Recommendation

Congress should urge the Department of Justice to amend its 2014 Guidance to ban
profiling in all contexts. The Guidance should apply to state and local law enforcement
agencies acting in partnership with federal agencies or receiving federal funds or access
to federal law enforcement and intelligence systems.
B.

Police Militarization

The shooting of Michael Brown in Ferguson, Missouri, has sparked a long overdue discussion
about the militarization of local police. The funds and equipment funneled to local police
departments to fight the war on drugs and the war on terror have given police access to
military hardware that seems inappropriate for their role in Americas communities. Moreover,
these wars have altered the relationship between police and the populations they are sworn to
protect, creating a counter-insurgency mindset in which the public is perceived as the enemy.
There is currently an array of federal grant programs that provide equipment and tactical
resources to state and local law enforcement, including programs administered by the

36

Id. at 8.
Id. at 10.
38
Id. at 1.
39
Id. at 11.
37

11

Department of Defense (DOD), the Department of Justice (DOJ), and the Department of
Homeland Security (DHS):

Department of Defense. To date, Congressional concern over the militarization of police

has focused on the DODs 1033 Program, which provides surplus military gear
machine guns, grenade launchers, helicopters, and tanks to state and local police. In
2013 alone, the 1033 Program transferred nearly $450 million worth of military
equipment designed for the battlefields of Iraq and Afghanistan to civilian police.40
Equally troubling, however, is the DODs 1122 Program, which allows local police to
purchase new military weapons and equipment with no federal oversight whatsoever.

Department of Justice. The DOJ operates the High Intensity Drug Trafficking Areas
Program, which doled out more than $238 million in 2013 to help police fight drug
crimes and terrorism.41 In New York City, for example, police used the money to
purchase surveillance vehicles and computer systems to store reams of innocuous
information about law-abiding Muslims as if Brooklyn was Baghdad.42 The DOJ also
provides assistance to local police through the Edward Byrne Memorial Justice
Assistance Grant (JAG) Program, which, among other things, provides funding for body
armor, weapons, helicopters, and even GPS tracking devices.43

Department of Homeland Security. DHS runs the Homeland Security Grant

Program, which last year gave more than $900 million in counterterrorism funds to state
and local police.44 According to a 2012 report by Sen. Tom Coburn, this money has been
used to purchase tactical vehicles, drones, and even tanks with little obvious benefit to
public safety.45 It also funds state and local fusion centers operating Suspicious
Activity Reporting (SAR) programs, which have not been especially useful in preventing
terrorist attacks, but contribute to the counterinsurgency mindset and raise serious civil
liberties concerns.46

40

About the 1033 Program, DEF. LOGISTICS AGENCY DISPOSITION SERV.,

http://www.dispositionservices.dla.mil/leso/Pages/default.aspx (last visited Dec. 4, 2014).
41
DEA Programs: High-Intensity Drug Trafficking Areas (HIDTAs), DRUG ENFORCEMENT ADMIN.,
http://www.dea.gov/ops/hidta.shtml (last visited Dec. 4, 2014).
42
Eileen Sullivan, White House Helps Pay For NYPD Muslim Surveillance, ASSOCIATED PRESS, (Feb. 27, 2012),
available at http://www.ap.org/content/ap-in-the-news/2012/white-house-helps-pay-for-nypd-muslim-surveillance.
43
LAURA WYATT, GRANT ACTIVITY REPORT: JUSTICE ASSISTANCE GRANT (JAG) PROGRAM, APRIL 2012-MARCH
2013, 4 (Bureau of Justice Assistance, 2013), https://www.bja.gov/Publications/JAG_LE_Grant_Activity_0313.pdf; BUREAU OF JUSTICE ASSISTANCE, EDWARD BRYNE MEMORIAL JUSTICE ASSISTANCE GRANT (JAG)
PROGRAM- FREQUENTLY ASKED QUESTIONS, 12 (2014), https://www.bja.gov/Funding/JAGFAQ.pdf; BUREAU OF
JUSTICE ASSISTANCE, TRACKING DEVICES FOR VULNERABLE POPULATIONS, (2013)
https://www.bja.gov/Funding/TrackingDeviceFunding.pdf.
44
DHS Announces Grant Allocation for Fiscal Year (FY) 2013 Preparedness Grants, DEPT. OF HOMELAND
SECURITY, http://www.dhs.gov/news/2013/08/23/dhs-announces-grant-allocation-fiscal-year-fy-2013-preparednessgrants (last visited Dec. 4, 2014).
45
See generally Senator Tom Coburn, Safety at Any Price: Assessing the Impact of Homeland Security Spending in
U.S. Cities, (Dec. 2012), available at
http://www.coburn.senate.gov/public/index.cfm?a=Files.Serve&File_id=b86fdaeb-86ff-4d19-a112-415ec85aa9b6.
46
See generally Michael Price, National Security and Local Police (Brennan Center for Justice at NYU Law, 2013),
http://www.brennancenter.org/sites/default/files/publications/NationalSecurity_LocalPolice_web.pdf .

12

The White House recently conducted a review of these programs and found that they do not
necessarily foster or require civil rights/civil liberties training and generally lack mechanisms
to hold [local law enforcement] for the misuse or misapplication of equipment.47 The report
called for an Executive Order designed to improve federal coordination and oversight as well as
increase training requirements and local community engagement. While such reforms are
certainly needed, the review failed to address a more fundamental question: Should local police
have military equipment in the first place?
To be sure, it is important to protect police officers from harm, and in limited situations, that
might mean the use of body armor or a SWAT team. But as a general rule, the focus should be
on how the police can protect the people they serve, not the other way around. It is therefore
critical to weigh the pros and cons of these federal programs and assess whether they should
continue at all.
Congress should be attuned to the drawbacks of putting military hardware in the hands of local
police interacting with a civilian population. Easy access to such equipment incentivizes its use
and encourages the counter-insurgency tactics that have become a part of American policing.
In addition to better oversight and training, it is equally important to find ways to combat the
consequences of the war paradigm: the encouragement of a mindset that views residents as
potential threats rather than potential partners. This approach is fundamentally at odds with
community policing strategies that emphasize building trust and cooperation between the police
and the people they serve, which have long been at the center of the Justice Departments stated
philosophy. Federal dollars should flow to support rather than undermine this goal.
Recommendations

Congress should review all federal programs providing military equipment to state and
local police and assess whether the programs should continue given the harm to
community policing efforts and erosion of community trust.
Based on its review, Congress should impose limits on the flow of military equipment to
state and local police and eliminate exceptions for counter-drug or counter-terrorism
activities.
IV.

CONCLUSION

The Brennan Center thanks the Senate Judiciary Committee, Subcommittee on the Constitution,
Civil and Human Rights. We appreciate the opportunity to submit written testimony on the state
of civil and human rights and to offer our recommendations on ways to improve upon and
advance protections in these areas.

47

Executive Office of the President, Review: Federal Support for Local Law Enforcement Equipment Acquisition, 3
(Dec. 2014)
http://www.whitehouse.gov/sites/default/files/docs/federal_support_for_local_law_enforcement_equipment_acquisit
ion.pdf .

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